Sutton v. Keresey

In an action to recover upon two promissory notes, defendant appeals from an order of the Supreme Court, Nassau County, dated May 1, 1973, which denied his motion to vacate plaintiff’s statement of readiness and to strike the action from the trial calendar. Order modified, by adding thereto a provision that plaintiffs shall submit to the examinations before trial and the discovery sought by .defendant in his two notices dated April 13, 1973 and the trial is stayed pending completion of those proceedings. As so modified, order affirmed, without costs. The examinations and discovery shall proceed at the place set forth in the said notices at times to be set forth in new written notices'of not less- than 10 days, to be given by defendant, which'notices must 586 be served not later than 10 days after entry of the order to be made hereon. Special Term properly denied defendant’s motion. The note of issue and the statement of readiness were served on defendant on March 27, 1973, four days after he served his answer on plaintiffs, but defendant did not serve his notices for examinations before trial and for discovery until April 13, 1973, 21 days after service of the answer. Under the circumstances herein, defendant may be permitted to use disclosure devices after the filing of the statement of readiness (Wahrhaftig v. Space Design Group, 33 A D 2d 953). Hopkins, Acting P. J., Latham, Gulotta and Christ, JJ., concur.